Hottak & Anor, R (on the application of) v The Secretary of State for Foreign and Commonwealth Affairs & Anor

The territorial reach of the Equality Act 2010 depends on statutory construction and the connection between the employment relationship and Great Britain. Locally engaged employees who live and work exclusively abroad ordinarily fall outside Part 5 unless their employment has a sufficiently strong connection with Great Britain and British employment law. Part 3 cannot circumvent that territorial limit. The Public Sector Equality Duty has a wider functional reach: a public authority formulating policy must have due regard to equality of opportunity and good relations even where the policy affects persons abroad, subject to statutory immigration exceptions. A breach does not automatically require quashing; declaratory relief may suffice.

The claimants were Afghan nationals formerly employed as interpreters by British Forces in Afghanistan. They challenged the less generous relocation opportunities under the Afghan Scheme compared with the earlier Iraq Scheme.

They alleged direct or indirect nationality discrimination under sections 39(2) and 29(6) of the Equality Act 2010, breach of the Public Sector Equality Duty under section 149(1), and a common-law requirement to treat like cases alike. The central issues were the territorial reach of the discrimination provisions and the appropriate remedy for failure to have due regard to equality considerations when formulating the scheme.

1. The discrimination claims under sections 29(6) and 39(2) of the Equality Act 2010 failed. The territorial approach developed for section 94(1) of the Employment Rights Act 1996 applied, or was at least no narrower, under section 39(2). The place of employment is generally decisive. An exception requires a sufficiently strong connection with Great Britain and British employment law.
2. The claimants were locally engaged, lived and worked in Afghanistan, had contracts not governed by English law, and lacked a physical connection with Great Britain. Their employment did not fall within the exceptional category.
3. Section 28 prevented the claimants from recasting an employment-related complaint outside Part 5 as a public-functions claim under Part 3. The common-law claim also failed because the Afghan and Iraqi schemes reflected materially different countries, periods, security conditions and abilities to investigate threats.
4. The defendants were required, when formulating the Afghan Scheme, to have due regard under section 149(1)(b) and (c) to equality of opportunity and good relations. Those duties applied by reference to the defendants’ functions and were not territorially limited merely because the policy affected persons abroad, subject to the immigration exceptions in Schedule 18.
5. No equality analysis had been undertaken when the scheme was formulated. The breach was established, but quashing was inappropriate because it would adversely affect beneficiaries and a subsequent analysis had addressed the relevant matters. Declaratory relief was appropriate; a mandatory order would serve no useful practical purpose.
6. The claim therefore succeeded only in relation to the Public Sector Equality Duty.